Judith Whittaker is, by all informed accounts, an outstandingly qualified person to be nominated to the 8th U.S. Circuit Court of Appeals. She was, in fact, outstanding enough to be the Reagan administration's first female nominee to the appeals court, until she became the target of a New Right smear campaign. Then, in a real show of principle, the administration dropped her like a hot potato.
Whittaker, a Kansas City lawyer who graduated first in her class at the University of Missouri Law School, is associate general counsel of Hallmark Cards and a trustee of Brown University and the University of Missouri in Kansas City. The American Bar Association has deemed her to be a fully qualified candidate for a seat on the appeals court, which is just below the level of the Supreme Court. She is a Republican. She has publicly supported the Equal Rights Amendment. Her views on abortion are not publicly known, but that did not deter her opponents from engaging in a poisonous campaign.
Quite purely and simply, they lied. They expanded her support for ERA into a political stereotype and lobbied against her with White House political director Lyn Nofziger. They labeled her a "liberal Democrat," and a "strong feminist" in a right-wing newsletter. They claimed she was not even a Republican. They said she was liberal on abortion.
Instead of telling them to buzz off, the I White House listened and the next thing you know you have Deputy Attorney General Edward Schmults acknowledging that Whittaker has been dropped as a potential nominee because there was not enough "broad-based support for her." This brings to mind a picture of Schmults placing his hand over the heads of three judicial nominees to see which one gets the highest rating on the audience applause meter. That may be the way we pick television game show winners, but it is not the way we are supposed to pick judges for the federal bench.
Whittaker's treatment has now prompted support for her from The New York Times and The Kansas City Star, which called it a "sorry episode," and declared that a "handful of irresponsible people should not be allowed to influence important government matters in such a negative and underhanded way."
And it has provoked an extraordinary letter from Donald P. Lay, chief judge of the 8th Circuit, which covers Missouri, Arkansas, Iowa, Minnesota, Nebraska and the Dakotas. The letter was written to each of the United States senators representing those states and copies have been sent to the chief justice of the U.S. Supreme Court, a number of appeals court judges, members of the Senate Judiciary Committee, the attorney general, and others, including presidential counsel Fred Fielding, who acknowledged in an interview with The Washington Post that "the abortion issue most often comes up in regard to potential women candidates."
In case anyone thinks that all that is at I stake here is a lawyer's reputation and career, or just another example of how the Reagan administration treats female nominees, a few paragraphs of Judge Lay's letter ought to set the record straight. "We are now going into our 25th month of vacancy, with no appointment," he wrote and underlined. "Until recently our court maintained the highest ranking in the nation in disposing of cases. However, for the past 12 months we have faced a dire emergency through the lack of judicial manpower . . . .
"I have recently learned there has been an organized campaign by a certain political faction both in and out of Missouri to oppose Whittaker ," wrote Judge Lay. "Because of this fact, I am informed that her candidacy has now been withdrawn and that 'sometime' after the first of the year they Sen. John Danforth, the White House and others would start to develop a new list of names. It is incredible to me and my colleagues that such an attack can be effective so late in the day. Mrs. Whittaker has appeared before our court, and is an outstanding lawyer possessing the qualities to become a great and gifted judge."
Judge Lay is rightfully concerned about the court's work and has used this situation as an example of how the selection process impedes the courts. The delay in finding another nominee, he wrote, "is intolerable." So, to anyone interested in fair play, is the administration's spineless response to the reprehensible attacks on Whittaker.